Last week the federal government unveiled Bill
C-60, its long awaited
digital copyright reform bill. Ottawa kept its promises – the recording
industry and Canada’s Internet service providers emerged as the big
winners with each securing a lengthy list of new rights, power, and
protections.

While some of those provisions strike an admirable balance (most
notably the approach to ISP liability which should serve as a model for
other countries), the biggest disappointment is found in the tepid
provisions on digitizing access to knowledge in Canadian schools and
libraries.

The bill contains provisions that are ostensibly designed to facilitate
technology-based education and the digital delivery of library
materials. Unfortunately, they fall far short of their goal by
hobbling any new rights with suffocating restrictions that render the
provisions practically useless.

For example, Bill C-60 purports to promote Internet-based learning by
permitting schools to communicate lessons featuring copyrighted
materials via telecommunication. The bill quickly restricts that
new right, however, by forcing schools to destroy the lesson within 30
days of the conclusion of the course. Moreover, schools are
required to retain, for three years, records that identify the lesson
as well as the dates it was placed on a tangible medium and ultimately
destroyed.

The library provisions are even more onerous, turning librarians in
digital locksmiths, who are ironically compelled to restrict access to
knowledge in order to provide it. The bill allows libraries and
archives to provide digital copies of materials, however, in order to
do so they must limit further communication or copying of the digital
files and ensure that the files cannot be used for more than seven
days.

We can do better. Led by Industry Ministers from Manley to
Emerson, Canada has built a world class Internet infrastructure.
We were the first country to bring Internet access to every school from
coast to coast to coast, and we consistently rank in the top five of
countries in terms of broadband access (though many countries,
particularly in Europe, are on the verge on leaping past us).

Having spent billions constructing the infrastructure, the federal
government would now do well to establish policies that leverage these
new technological capabilities to foster economic growth, innovation,
new research opportunities, and the dissemination of Canadian culture.

In the short term, the provisions in Bill C-60 that seek to facilitate
knowledge distribution through digital networks should be amended by
removing the restrictions that have been placed on educational
institutions and libraries. Such an approach would better
ensure that all Canadians benefit from greater access to educational
materials and life learning opportunities.

Even with those amendments, Canada will still need to institute
additional reforms to fully leverage the Internet’s potential.
Indeed, other countries are already moving in that direction.
Spurred by Google’s plans to work with the world’s leading research
libraries to digitize millions of books, the European
Union has pledged
nearly C$150 million to digitize all books from Europe’s 20 leading
libraries.

As I
suggested earlier this year, Canada could set an even more
ambitious yet attainable goal – the digitization of every Canadian
book, government document, and court case ever published. The public
would benefit from unrestricted access to works in the public domain
along with more limited access to other work, all without the need to
seek any prior permission. Authors would still enjoy copyright
protection in their work and would frequently find that greater access
leads to increased commercial success.

Canada would also do well to move away from the confining “fair
dealing” approach that limits uses to prescribed categories such as
research or private study, and instead adopt the more flexible fair use
model found in the United States that is not so limited. While
the Canadian Supreme Court has emphasized the importance of a broad and
liberal interpretation to fair dealing, the approach still suffers from
a relatively rigid categorization of exceptions. The United
States does not feature such limitations in its copyright law, thereby
encouraging innovative, fair uses of existing work.

Canada recognized the benefits of a fair use system in a landmark
policy paper in the 1980s, yet failed to introduce legislation to
implement the recommendation. That failure may leave Canada
behind once again, since countries such as Australia
are currently
contemplating reforms to their fair dealing provisions.

Ottawa could also actively support the public domain, recognizing that
Canadian authors have a long history of building on prior work through
what Margaret Atwood once referred to as acts of literary
“reclamation.” A robust public domain does more than just provide
creators with source material for future work -- it also has the
potential to support Canada’s commercial publishing interests.

For example, consider that the 2005 winner of CBC’s Canada Reads
contest was Rockbound, a book published in 1928 by its author Frank
Parker Day, who died in 1950. Rockbound is now in the public
domain, yet the University of Toronto Press stands to generate
substantial new income that can be used to support other authors from
publishing and selling the surprise best seller.

Indeed, while copyright is frequently characterized as a battle between
creator and user interests, policies such as these that seize
technology and Internet opportunities generate benefits for all
constituencies including greater exposure and income for creators,
increased access to knowledge for users, and economic growth for the
broader Canadian economy.

The most disheartening aspect of Bill C-60 is that there is so little
in it that unifies technology with culture and education to the benefit
of all. Rather, the potential of the Internet is viewed as a
threat, leading to legislative provisions that will leave Canada
looking on enviously at other countries that courageously put the
public interest first.

After introducing Bill C-60 in the House of Commons last week, Canadian
Heritage Minister Liza Frulla proceeded to conduct an interview at the
venue she undoubtedly thought best reflected the priorities of the
legislation -- a nearby HMV music store. While music is
important, it is only when government leaders conduct such interviews
at schools, libraries, and research labs that we will know that
Canadian copyright policy is headed in the right direction.

Michael Geist is the Canada Research
Chair in Internet and E-commerce Law at the University of Ottawa. He
can be reached by email at mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.